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Eminent Domain Goes to the Dark Side

The Supreme Court has made what could be a ruling with major architectural implications. Local governments have been given the OK to use Eminent Domain to seize homeowners' land for private projects as they see fit. | CNN

This is a really interesting case because I find it is hard to confidently take one side or the other, especially since the argument most of you have made is the more "conservative" one, and the courts finding a more "liberal" one. I tend toward the liberal side usually, but the idea of a healthy middle class neighbor being razed for a strip mall that will be vacant in ten years raised my hackles. on the other hand, there are plenty of cities where new economic development is really needed to start things up, and in some cities the mayors and councilors are conscientious enough that they would use the additional money for "good" - mixed income housing, etc - while building new development that is socially responsible. so, I don't think it is really so cut and dried as "here goes zimbabwe" or somesuch. this country has relied on eminent domain for a long time, and I think it is safe to say we are past the era of urban renewal, when an entire neighborhood was raised to literally "gentrify" it. my concern is how you say to a government that they can use eminent domain for social good, reasonably, but control for that good: maybe a city needs to tear down houses to provide parking for a successful zoo and the parking is really necessary-in that case i believe it is safe to say that the social benefit outweighs the cost, and a responsible politician would put that money back into new housing. but what about when a planner decides to build a "lifestyle center" where a middle class neighborhood with solid housing stock now stands, as is happening in norwood, ohio near cincinnati - who is there to say that use is inappropriate, that when that shopping center is abandoned for the next big thing, they will regret having destroyed an organically evolved neighborhood? that is not the supreme court's responsibility, but i am not sure how to ensure that someone is there to provide a check on wild planning schemes that lack foresight.

hckybg,
the idea that local government, which is fraught with corruption and big-money influence is the decisionmaker in this is disturbing to say the least.

Rather than lending a helping hand to those less fortunate, we are giving local officials the greenlight to slap them across the face and tell them to move on.

Say a company donated $50G to your campaign and after winning they point to an area for your city which people refer to a the 'slum' and say look we'd like to build our mall for the 'public good', what do think is going to happen.

Show me a socially responsible councilman and I'll show you an architect. alas there are more corrupt officials than the Maurice Coxs' of the world...

i agree completely that there aren't enough Maurice Coxs in local government - this is why I am torn. In a world where small sections of neighborhoods are torn down in order to allow development for the true "public good," this decision is a good one. In one where developers can easily buy politicians, and their inner machiavelli says "do it," this decision is disturbing. you are absolutely right to point this out. but what, then? do we say that no property can ever be taken for any private development? or do we say that any property can be taken for any private development? and what about the line between public and private, which is often too fine to really discern? the two options the SC has in this case were not good ones. i dont feel comfortable with local gov'ts being the final word in many cases; but i also dont feel comfortable with the federal government making decisions that would be nuanced and delicate on a local level. this does open the door to abuse of power, but it also creates the possibility that new creative solutions could evolve - you and i both agree that concentrations of abject poverty are a major social problem; if there was someone in government (at any level) with a strong enough backbone to demand mixed-income housing as neighborhoods gentrify, then this could serve a "public good." i think it is a problem to say only that this decision shouldn't fall on the shoulders of local government-if they are held accountable for the problems you cite, they could be the best decisionmaker. but since in many cases they aren't accountable, i dont really know how to control for the problems that might result from this.

Also, hckybg, Private developers have always had the right to aquire any land they want, as long as the current owner will SELL it to them and they can agree upon a price. What is wrong with using a concept like eminent domain is that it forces a transfer of ownership against the landowner's will or for a price the landowner does not agree with. It just gives far too much power to local officials, who are apt to always side with the developer because of the political advantages of "cleaning up the city" and "bringing in tax revenue". At what cost?

i guess im really experiencing cognitive dissonance-this is just so weird that we are all siding with Clarence Thomas and Antonin Scalia. It seems surreal to me. And I realize their objection was different from ours (property rights v. developer pandemonium). I dont disagree with anything you are saying, Cameron and onecentJay; I just wonder if this says more about how little accountability local politicians have than anything about the validity of eminent domain.

A recent example of this; Sci-arc wouldn't have even had a trial. The city would have just sided with the developer, and that would have been that, regardless of whether or not Moss & Co. actually owned the building or not. Is this a correct analysis?

Man, think of how much fun Boss Tweed or Robert Moses would have had with this decision.

Gotta chime in to support hckybg . . . I think you are right in pointing out that this is not as simple as it may appear on its face. The power of eminent domain has a long history in the US. Some bad, as Cameron has pointed out and some good (see Hawaii Housing Authority v. Midkiff, 467 U.S. 229). By "good" I am referring to what present day "liberals" would generally view as good. In the HI case, the legislature of HI used eminent domain to enable middle class citizens to buy the land that had been occupied by capital interests. Without the power of eminent domain, in many cases the middle class would have been unable to own a home on the islands and forced to rent from the oligarchy or move.

There is a reason the 'liberal' justices ruled the way that they did. Also, while this ruling clearly expands the boundaries of eminent domain as defined by the Supremes, prior case law does seem to support it.

Eminent domain is the legal machinery behind important functions of city planning, which I would thing most of you would not find difficult to support (see Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, or Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104). Without eminent domain governments' power to conserve/ preserve is gutted.

Stroke,
Again, this issue is very complex not (only) in relation to the facts of this case; but as it relates to prior interpretation of the Fifth Amendment and as to the precedent this decision will set for the future. The Constitutional issues implicated go beyond the rights of individuals and involve the balance of powers, opposing theories of constitutional interpretation, the role of the courts and more.

This decision clearly stands on the side of the interest of a community as a whole over the interest of an individuals. A classic formulation of a 'liberal' view vs. a conservative one. I certainly have strong libertarian leanings but I understand that just because I own something, land, a car, whatever doesn't mean that I can use that thing as I please-- to the detriment of others. Changing circumstances might allow the government to increase or decrease my rights as they relate to that thing.

What makes this decision so difficult to reconcile with other 'liberal' beliefs is that in this case the people whose property is effected are the little guys and the benefit is seen as going to wealthy corporate and developer's interests. It must be kept in mind that the aim of the development is to maximize the gain to the community as a whole. I have no idea if that is what this development will do (and the court conceeds that they don't know either--but thankfully urban planning is not a power delegated to the Supreme Court).

The court is saying in part that economic development is a legitimate interest for governments, municipalities, states, etc. to pursue. If the officials elected by the community make findings such as they did here, and produce a coherent plan which appears to further the legitimate interests then the constitution does not provide that the courts should second guess the other branches.

Many uses of the power of eminent domain run counter to development (conservation, preservation, etc.) in this case, because it is a privately funded mixed use development and not a freeway, etc. funded by tax dollars, the case can seem to be pro-developer.

I hope that this does not read as simplifying the case, it wouldn't be a 5-4 decision with justices writing seperately on both sides if it were. As has been said earlier (and in the majority opinion), I agree that it comes down to: if you don't like what your government is doing--do something about it.